MARKET RULES TO EMPOWER TELECOMMUNICATIONS CONSUMERS AND TO PREVENT FRAUD

GENERAL ORDER NO. 168

PUBLIC UTILITIES COMMISSION OF THE

STATE OF CALIFORNIA

Consumer Bill of Rights

Governing Telecommunications Services

Adopted March 2, 2006; Effective March 2, 2006

(Decision 06-03-013 in Rulemaking 00-02-004)

IT IS ORDERED that all Commission-regulated telecommunications service providers shall respect the consumer rights and freedom of choice provisions set forth in this General Order.

PART 1 - Consumer Bill of Rights and Freedom of Choice

The Commission adopts the following rights and principles in this Consumer Bill of Rights as a framework for consumer protection and freedom of choice in a competitive telecommunications market.

Freedom of Choice:

· Consumers have a right to select telecommunications services and vendors of their choice.

· Consumers have the right to change voice service providers within the same local area and keep the same phone number in accordance with the rules set forth by FCC regulations regarding Local Number Portability.1

Disclosure:

· Consumers have a right to receive clear and complete information about all material terms and conditions, such as material limitations, for i) products and service plans they select or ii) available products and service plans for which they request information.

· Consumers have a right to be charged only according to the rates, terms and conditions they have agreed to, as set forth in service agreements or carrier tariffs governing services ordered.

Privacy:

· Consumers have a right to personal privacy, to have protection from unauthorized use of their personal information and records, and to reject intrusive communications and technologies.

Public Participation and Enforcement:

· Consumers have a right to participate in public policy proceedings affecting their rights, to be informed of their rights and what agencies enforce those rights, and to have effective recourse if their rights are violated.

Accurate Bills and Dispute Resolution:

· Consumers have a right to accurate and understandable bills for products and services they authorize, and to mechanisms for resolving disputes and correcting errors that are accessible, if readily achievable; fair; efficient; and reasonable.

Non-Discrimination:

· Consumers have the right to be treated equally to all other similarly-situated consumers, free from unreasonable prejudice or discrimination.

Public Safety:

· Consumers have a right to maintain the safety and security of their person, property, financial records and personal information.

· Consumers have a right to expect that that voice providers will offer connections to E911 emergency services and access to Public Safety Answering Points to the extent this is technically feasible and required by law, and to clear and complete disclosure of material limitations on access to 911 emergency services.

In adopting these principles the Commission does not assert regulatory jurisdiction over broadband service providers; Internet Service Providers; Internet content or advanced services; or any other entity or service not currently subject to regulation by the California Public Utilities Commission. To the extent the California Public Utilities Commission lacks such jurisdiction over any such entity or service, it will work with the Federal Communications Commission to develop appropriate mechanisms in support of the foregoing rights and principles.

The foregoing principles contained in this Consumer Bill of Rights and Freedom of Choice shall serve the same purpose as a statement of legislative intent that will help guide governmental action to promote consumer protection and freedom of choice in a competitive telecommunications market. These principles shall not be interpreted to create a private right of action, to form the predicate for a right of action under any other state or federal law, or to create liability that would not exist absent the foregoing principles.

PART 2 - Consumer Protection and Public Safety Rules

A. Applicability

These rules are applicable to telecommunications services subject to the Commission's jurisdiction offered by telecommunication service providers.

Compliance with these rules does not relieve service providers of other obligations they may have under their tariffs, other Commission General Orders and decisions, FCC orders and federal or state statutes.

For services offered under the Universal Lifeline Telephone Service program, carriers shall also comply with the requirements set forth in General Order 153, Procedures for Administration of the Moore Universal Telephone Service Act, where they apply. The requirements of General Order 153 take precedence over these rules whenever there is a conflict between them.

The Commission intends to continue its policy of cooperating with law enforcement authorities to enforce consumer protection laws.

These rules shall not be interpreted to create any new private right of action, to abridge or alter a right of action under any other state or federal law, or to create liability that would not exist absent the foregoing rules.

The standard to be applied in the construction and application of these rules is that of a reasonable consumer.

B. Rules

Rule 1: Commission staff Requests for Information

(a) Every carrier and service provider under the Commission's jurisdiction shall designate one or more representatives to be available to Commission staff during regular business hours (Pacific Time) to accept staff's inquiries and requests for information regarding informal complaints from subscribers. Every carrier and service provider shall provide to the Commission staff and at all times keep current its list of representative names, telephone numbers and business addresses.

(b) Every carrier and service provider under the Commission's jurisdiction shall provide all documents and information Commission staff may request in the performance of its informal complaint and inquiry handling responsibilities, including but not limited to subscriber-carrier service agreements and contracts, copies of bills, carrier solicitations, subscriber authorizations, correspondence between the carrier and subscriber, applicable third party verifications, and any other information or documentation. Carriers and service providers shall provide requested documents and information within ten business days from the date of request unless other arrangements satisfactory to Commission staff are made.

(c) Nothing in these rules shall limit the lawful authority of the Commission or any part of its staff to obtain information or records in the possession of carriers when they determine it necessary or convenient in the exercise of their regulatory responsibilities to do so.

Rule 2: Worker Identification

(a) This rule only applies to individuals and small businesses that purchase, subscribe to, or apply for a telecommunications service subject to Commission jurisdiction. For the purposes of this rule, a small business is a business or individual that subscribes or applies for not more than ten telephone access lines from any single carrier, and a business or individual subscribing to or applying for a T-1 line may not be considered a small business customer. For purposes of this rule, all entities other than individuals (e.g., government and quasi-governmental agencies, associations, etc.) meeting the ten-access limit are treated identically with small businesses.

(b) Every carrier shall prepare and issue to its employees and contractors who, in the course of their employment, have occasion to enter the premises of subscribers of the carrier or applicants for service, an identification card in a distinctive format having a photograph of the employee or contractor. The carrier shall require its employees and contractors to present the card upon requesting entry into any building or structure on the premises of an applicant or subscriber.

(c) Every carrier shall require its employees and contractors to identify themselves at the request of any applicant or subscriber during a telephone or in-person conversation, using a real name or other unique identifier.

(d) No carrier shall misrepresent, or allow its employees or contractors to misrepresent, its association or affiliation with a telephone carrier when soliciting, inducing, or otherwise implementing the subscriber's agreement to purchase products or services, and have the charge for the product or service appear on the subscriber's telephone bill.

Rule 3: Emergency Services 911 / E911

(a) All carriers and voice service providers providing end-user access to the public switched telephone network shall, to the extent permitted by existing technology or facilities and in accordance with all applicable Federal Communications Commission orders, provide every residential telephone connection, and every wireless device technologically compatible with its system, with access to 911 emergency service regardless of whether an account has been established.

(b) No carrier shall terminate such access to 911 emergency service for non-payment of any delinquent account or indebtedness owed to the carrier.

(c) Nothing in this rule shall require a local telephone corporation to provide 911 emergency service pursuant to this section if doing so would preclude providing service to subscribers of residential telephone service.

PART 3 - Rules Governing Slamming Complaints

A. Purpose and Scope

The purpose of these rules is to establish carriers' and subscribers' rights and responsibilities, and the procedures both must follow, for addressing slamming complaints that involve California's regulated telecommunications carriers. Slamming is the unauthorized change of a subscriber's presubscribed carrier. These California-specific rules are designed to supplement and work in conjunction with corresponding rules issued by the Federal Communications Commission.

The California Public Utilities Commission is the primary adjudicator of both intrastate and interstate slamming complaints in California. A subscriber may request that the FCC rather than the Commission handle an interstate slamming complaint, in which case the FCC would apply its rules, and these rules would govern any related intrastate complaint. Where these rules differ from the FCC's slamming rules, the differences are in recognition of California-specific issues and are consistent with the FCC's mandate to the states.

Compliance with these rules does not relieve carriers of other obligations they may have under their tariffs, other Commission General Orders and decisions, FCC orders, and state and federal statutes. Nor do these rules limit any rights a consumer may have.

The Commission intends to continue its policy of cooperating with law enforcement authorities to enforce consumer protection laws.

These rules shall not be interpreted to create any new private right of action, to abridge or alter a right of action under any other state or federal law, or to create liability that would not exist absent the foregoing rules.

These rules take precedence over any conflicting tariff provisions on file at the Commission. The remedies provided by these rules are in addition to any others available by law.

The standard to be applied in the construction and application of these rules is that of a reasonable consumer.

B. Definitions

Authorized Carrier: Any telecommunications carrier that submits a change, on behalf of a subscriber, in the subscriber's selection of a provider of telecommunications service with the subscriber's authorization verified in accordance with state and federal law.

Consumer Affairs Branch (CAB): The Commission office where California consumers may complain about a utility service or billing problem they have not been able to resolve with the utility.

Days: Calendar days, unless otherwise noted.

Executing Carrier: Any telecommunications carrier that effects a request that a subscriber's telecommunications carrier be changed. A carrier may be treated as an executing carrier, however, if it is responsible for any unreasonable delays in the execution of carrier changes or for the execution of unauthorized carrier changes, including fraudulent authorizations.

FCC: Federal Communications Commission.

LATA: Local Access and Transport Area.

Submitting Carrier: Any telecommunications carrier that requests on the behalf of a subscriber that the subscriber's telecommunications carrier be changed and seeks to provide retail services to the end user subscriber. A carrier may be treated as a submitting carrier, however, if it is responsible for any unreasonable delays in the submission of carrier change requests or for the submission of unauthorized carrier change requests, including fraudulent authorizations.

Subscriber: Any one of the following:

(1) The party identified in the account records of a carrier as responsible for payment of the telephone bill;

(2) Any adult person authorized by such party to change telecommunications services or to charge services to the account; or

(3) Any person contractually or otherwise lawfully authorized to represent such party.

Unauthorized Carrier:Any telecommunications carrier that submits a change, on behalf of the subscriber, in the subscriber's selection of a provider of telecommunications service but fails to obtain the subscriber's authorization verified in accordance with state and/or federal law.

Unauthorized Change: A change in a subscriber's selection of a provider of telecommunications service that was made without authorization verified in accordance with the verification procedures described in state and/or federal law.

C. Authorization and Verification of Orders for Telecommunications Services

Authorization and verification of orders for telecommunications services shall be done in accordance with applicable state and federal laws.

D. Carrier Liability for Slamming

(a) Carrier Liability for Charges. Any submitting telecommunications carrier that fails to comply with the required procedures for changing carriers or verifying subscriber authorization shall be liable to the subscriber's properly authorized carrier in an amount equal to 150% of all charges paid to the submitting telecommunications carrier by such subscriber after such violation, as well as for additional amounts as prescribed in Part 3.G. The remedies provided in this Part 3 are in addition to any other remedies available by law.

(b) Subscriber Liability for Charges. Any subscriber whose selection of telecommunications services provider is changed without authorization verified in accordance with legally-required procedures is liable for charges as follows:

(1) If the subscriber has not already paid charges to the unauthorized carrier, the subscriber is absolved of liability for charges imposed by the unauthorized carrier for service provided during the first 30 days after the unauthorized change. Upon being informed by a subscriber that an unauthorized change has occurred, the authorized carrier, the unauthorized carrier, or the executing carrier shall inform the subscriber of this 30-day absolution period. Any charges imposed by the unauthorized carrier on the subscriber for service provided after this 30-day period shall be paid by the subscriber to the authorized carrier at the rates the subscriber was paying to the authorized carrier at the time of the unauthorized change in accordance with the provisions of Part 3.F(e).

(2) If the subscriber has already paid charges to the unauthorized carrier, and the authorized carrier receives payment from the unauthorized carrier as provided for in paragraph (a) of this section, the authorized carrier shall refund or credit to the subscriber any amounts determined in accordance with the provisions of Part 3.G(c).

(3) If the subscriber has been absolved of liability as prescribed by this section, the unauthorized carrier shall also be liable to the subscriber for any charge required to return the subscriber to his or her properly authorized carrier, if applicable.

E. Resolution of Unauthorized Changes in Preferred Carrier

(a) Notification of Alleged Unauthorized Carrier Change. Executing carriers who are informed of an unauthorized carrier change by a subscriber must immediately notify both the authorized and allegedly unauthorized carrier of the incident. This notification must include the identity of both carriers.

(b) Referral of Complaint. Any carrier, executing, authorized, or allegedly unauthorized, that is informed by a subscriber or an executing carrier of an unauthorized carrier change shall direct that subscriber to CAB for resolution of the complaint.

(c) Notification of Receipt of Complaint. Upon receipt of an unauthorized carrier change complaint, CAB will notify the allegedly unauthorized carrier of the complaint and order that the carrier remove all unpaid charges for the first 30 days after the slam from the subscriber's bill pending a determination of whether an unauthorized change, as defined by Part 3.B., has occurred, if it has not already done so.

(d) Proof of Verification. Not more than twenty business days after notification of the complaint, the alleged unauthorized carrier shall provide to CAB a copy of any valid proof of verification of the carrier change. This proof of verification must contain clear and convincing evidence of a valid authorized carrier change. CAB will determine whether an unauthorized change, as defined by Part 3.B., has occurred using such proof and any evidence supplied by the subscriber. Failure by the carrier to respond or provide proof of verification will be presumed to be clear and convincing evidence of a violation.

F. Absolution Procedure Where the Subscriber Has Not Paid Charges

(a) This section shall only apply after a subscriber has determined that an unauthorized change, as defined by Part 3.B., has occurred and the subscriber has not paid charges to the allegedly unauthorized carrier for service provided for 30 days, or a portion thereof, after the unauthorized change occurred.

(b) An allegedly unauthorized carrier shall remove all charges incurred for service provided during the first 30 days after the alleged unauthorized change occurred, as defined by Part 3.B., from a subscriber's bill upon notification that such unauthorized change is alleged to have occurred.

(c) An allegedly unauthorized carrier may challenge a subscriber's allegation that an unauthorized change, as defined by Part 3.B., occurred. An allegedly unauthorized carrier choosing to challenge such allegation shall immediately notify the complaining subscriber that: the complaining subscriber must file a complaint with CAB within 30 days of either: the date of removal of charges from the complaining subscriber's bill in accordance with paragraph (b) of this section or; the date the allegedly unauthorized carrier notifies the complaining subscriber of the requirements of this paragraph, whichever is later; and a failure to file such a complaint within this 30-day time period will result in the charges removed pursuant to paragraph (b) of this section being reinstated on the subscriber's bill and, consequently, the complaining subscriber will only be entitled to remedies for the alleged unauthorized change other than those provided for in Part 3.D(b)(1). No allegedly unauthorized carrier shall reinstate charges to a subscriber's bill pursuant to the provisions of this paragraph without first providing such subscriber with a reasonable opportunity to demonstrate that the requisite complaint was timely filed within the 30-day period described in this paragraph.

(d) If CAB, under Part 3.H. below, determines after reasonable investigation that an unauthorized change, as defined by Part 3.B., has occurred, it shall notify the carriers involved that the subscriber is entitled to absolution from the charges incurred during the first 30 days after the unauthorized carrier change occurred, and neither the authorized or unauthorized carrier may pursue any collection against the subscriber for those charges.

(e) If the subscriber has incurred charges for more than 30 days after the unauthorized carrier change, the unauthorized carrier must forward the billing information for such services to the authorized carrier, which may bill the subscriber for such services using either of the following means:

(1) The amount of the charge may be determined by a re-rating of the services provided based on what the authorized carrier would have charged the subscriber for the same services had an unauthorized change, as described in Part 3.B., not occurred; or

(2) The amount of the charge may be determined using a 50% Proxy Rate as follows: Upon receipt of billing information from the unauthorized carrier, the authorized carrier may bill the subscriber for 50% of the rate the unauthorized carrier would have charged the subscriber for the services provided. However, the subscriber shall have the right to reject use of this 50% proxy method and require that the authorized carrier perform a re-rating of the services provided, as described in paragraph (e)(1) of this section.

(f) If the unauthorized carrier received payment from the subscriber for services provided after the first 30 days after the unauthorized change occurred, the obligations for payments and refunds provided for in Part 3.G. shall apply to those payments. If CAB, under Part 3.H. below, determines after reasonable investigation that the carrier change was authorized, the carrier may re-bill the subscriber for charges incurred.

G. Reimbursement Procedures Where the Subscriber Has Paid Charges

(a) The procedures in this section shall only apply after a subscriber has determined that an unauthorized change, as defined by Part 3.B., has occurred and the subscriber has paid charges to an allegedly unauthorized carrier.

(b) If CAB, under Part 3.H. below, determines after reasonable investigation that an unauthorized change, as defined by Part 3.B., has occurred, it shall direct the unauthorized carrier to forward to the authorized carrier the following:

(1) An amount equal to 150% of all charges paid by the subscriber to the unauthorized carrier; and

(2) Copies of any telephone bills issued from the unauthorized carrier to the subscriber. This order shall be sent to the subscriber, the unauthorized carrier, and the authorized carrier.

(c) Within ten days of receipt of the amount provided for in paragraph (b)(1) of this section, the authorized carrier shall provide a refund or credit to the subscriber in the amount of 50% of all charges paid by the subscriber to the unauthorized carrier. The subscriber has the option of asking the authorized carrier to re-rate the unauthorized carrier's charges based on the rates of the authorized carrier and, on behalf of the subscriber, seek an additional refund from the unauthorized carrier, to the extent that the re-rated amount exceeds the 50% of all charges paid by the subscriber to the unauthorized carrier. The authorized carrier shall also send notice to CAB that it has given a refund or credit to the subscriber.

(d) If an authorized carrier incurs billing and collection expenses in collecting charges from the unauthorized carrier, the unauthorized carrier shall reimburse the authorized carrier for reasonable expenses.

(e) If the authorized carrier has not received payment from the unauthorized carrier as required by paragraph (c) of this section, the authorized carrier is not required to provide any refund or credit to the subscriber. The authorized carrier must, within 45 days of receiving CAB's determination as described in paragraph (b) of this section, inform the subscriber and CAB if the unauthorized carrier has failed to forward to it the appropriate charges, and also inform the subscriber of his or her right to pursue a claim against the unauthorized carrier for a refund of all charges paid to the unauthorized carrier.

(f) Where possible, the properly authorized carrier must reinstate the subscriber in any premium program in which that subscriber was enrolled prior to the unauthorized change, if the subscriber's participation in that program was terminated because of the unauthorized change. If the subscriber has paid charges to the unauthorized carrier, the properly authorized carrier shall also provide or restore to the subscriber any premiums to which the subscriber would have been entitled had the unauthorized change not occurred. The authorized carrier must comply with the requirements of this section regardless of whether it is able to recover from the unauthorized carrier any charges that were paid by the subscriber.

[Comment: Nothing in these Part 3 rules is intended to prohibit a subscriber and an alleged unauthorized carrier from making mutually-agreeable arrangements for compensating the subscriber and restoring the service to the authorized carrier without the subscriber's having to file a complaint with CAB; provided, however, that the alleged unauthorized carrier must first have informed the subscriber of the 30-day absolution period and the subscriber's right to file such a complaint.]

H. Informal Complaints

The following procedures shall apply to informal complaints to the Commission alleging an unauthorized change of a subscriber's preferred carrier, as defined by P.U. Code § 2889.5 or the FCC's slamming rules.

(a) Address: Complaints may be mailed to:

Slamming Complaints

Consumer Affairs Branch

California Public Utilities Commission

505 Van Ness Avenue

San Francisco, CA 94102

(b) Form: The complaint shall be in writing, and should contain: (1) the complainant's name, address, telephone number, and e-mail address (if the complainant has one); (2) the names of the alleged unauthorized carrier, the authorized carrier, and the executing carrier, if known; (3) the date of the alleged unauthorized change, if known; (4) a complete statement of the facts (including any documentation) showing that the carrier changed the subscriber's preferred carrier without authorization; (5) a copy of the subscriber's bill which contains the unauthorized changes; (6) a statement of whether the complainant has paid any disputed charges to the alleged unauthorized carrier; and (7) a statement of the specific relief sought.

(c) Procedure:

(1) CAB staff will acknowledge receipt of subscriber's complaint and inform the subscriber of the procedures for resolving it.

(2) CAB will notify the executing carrier, the authorized carrier, and the alleged unauthorized carrier of the alleged unauthorized change.

(3) CAB staff will require the alleged unauthorized carrier to produce evidence of authorization and verification, and any other information or documentation CAB staff may need to resolve the subscriber's complaint. The alleged unauthorized carrier shall provide evidence of subscriber authorization and verification within twenty (20) business days of CAB's request. If a carrier requests an extension of time from CAB staff, the carrier shall provide a written explanation why the required explanation cannot be provided within twenty (20) days, and an estimate of when it will provide the information. If evidence of authorization and verification is not provided within twenty (20) business days, a presumption exists that an unauthorized change occurred, and CAB staff will find that an unauthorized change did occur.

(4) Upon request by CAB staff for information other than the subscriber authorization and verification, the alleged unauthorized carrier shall provide such information within twenty business days of CAB's request or provide a written explanation as to why the information cannot be provided within the required twenty business days and an estimate of when it will provide the information.

(5) CAB staff will determine whether an unauthorized change has occurred. CAB's investigation may include review of the alleged subscriber authorization, verification, solicitation methods and materials, and any other information CAB staff determines is relevant to the investigation.

(6) Upon concluding its investigation, CAB staff will inform the subscriber, the executing carrier, the alleged unauthorized carrier, and the authorized carrier of its decision.

(d) Appeals:

(1) If the subscriber is not satisfied with CAB staff decision, the subscriber may appeal the decision to a Consumer Affairs Manager. The subscriber shall present new information or explain any factual or legal errors made in CAB staff decision.

(2) If the subscriber is not satisfied with the resolution of the complaint by the Consumer Affairs Manager, the subscriber may file a formal complaint with the Commission according to the Commission's Rules of Practice and Procedure, Article 3.

(3) If CAB staff finds that an unauthorized change has occurred but the unauthorized carrier disagrees and pursues billing or collection against the subscriber, CAB staff will forward this information to Commission's enforcement staff and advise the subscriber to file a formal complaint.

Part 4 - Rules Governing Cramming Complaints

A. Applicability

The purpose of these rules is to clarify telephone companies' responsibilities, and the procedures they must follow, for addressing cramming complaints. Cramming occurs when an unauthorized charge is placed on a subscriber's phone bill.

Compliance with these rules does not relieve phone companies of other obligations they may have under their tariffs, other Commission General Orders and decisions, FCC orders, and state and federal statutes. Nor do these rules limit any rights a consumer may have.

The Commission intends to enhance its cooperation with law enforcement authorities and other appropriate government agencies to enforce consumer protection laws.

These rules shall not be interpreted to create any new private right of action, to abridge or alter a right of action under any other state or federal law, or to create liability that would not exist absent the foregoing rules.

The standard to be applied in the construction and application of these rules is that of a reasonable consumer.

B. Definitions

Complaint: Any written or oral communication from a person or entity that has been billed for a charge that the person or entity alleges was unauthorized and that was billed, either directly or indirectly, through a telephone company.

Investigation: An inquiry conducted by (i) the person or entity from which the disputed charge originated, (ii) a telephone company that provides billing services to any third party (including its own affiliate), (iii) the Commission, or (iv) any other relevant government agency, such as the District Attorney's office in the subscriber's county or the AG's office.

Telephone company: A telephone company is any telephone corporation (as defined in P.U. Code § 234) operating within California. This term includes resellers and wireless telephone service providers.

Subscriber: A person or entity that subscribes to a telecommunications network or service subject to Commission jurisdiction.

User: A person or entity using a telecommunications network or service subject to Commission jurisdiction.

(b) Authorization Required: In the case of a complaint, there is a rebuttable presumption that an unverified charge for a product or service was not authorized by the user. A telephone company may establish that a user authorized a charge with (i) a record of affirmative user authorization, (ii) a demonstrated pattern of knowledgeable past use, or (iii) other persuasive evidence of authorization. With regard to direct dialed telecommunications services, evidence that a call was dialed is prima facie evidence of authorization.

(c) Nonpayment of Charges During an Investigation: While a complaint investigation is pending, the subscriber shall not be required to pay the disputed charge or any associated late charges or penalties; the charge may not be sent to collection; and no adverse credit report may be made based on non-payment of that charge.

(d) Complaint Resolution: If a telephone company receives a complaint that the user did not authorize the purchase of the product or service associated with a charge, the telephone company, not later than 30 days from the date on which the complaint is received, shall either (i) verify and advise the subscriber of the user's authorization of the disputed charge or (ii) undertake to credit the disputed charge and any associated late charges or penalties to the subscriber's bill.

(e) Other Available Rights: Nothing herein shall prevent a subscriber from exercising his or her other rights.